Leventis & Leventis (No 3)
[2022] FedCFamC1F 521
Federal Circuit and Family Court of Australia
(DIVISION 1)
Leventis & Leventis (No 3) [2022] FedCFamC1F 521
File number(s): MLC 7710 of 2018 Judgment of: WILSON J Date of judgment: 19 July 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – last minute applications by the mother for family therapy to commence in circumstances where the trial is fixed for 28 August 2022 – amendments to trial directions ordered – application for updated valuations – no party other than the mother seeking that – orders for the wife to obtain but at her initial costs – mediation order – refused. Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 19 July 2022 Place: Melbourne Counsel for the Applicant: Ms D. Isaacson Solicitor for the Applicant: Nicholes Family Lawyers Solicitor for the First Respondent: Vadarlis & Associates Legal Counsel for the Second and Third Respondents: Mr A. Felkel Solicitor for the Second and Third Respondents: Pauline Madden Conveyancing ORDERS
MLC 7710 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LEVENTIS
Applicant
AND: MR B LEVENTIS
First Respondent
MS C LEVENTIS
Second Respondent
order made by:
WILSON J
DATE OF ORDER:
19 JULY 2022
THE COURT ORDERS THAT:
1.The application in paragraph 2, Part (d) of the application in a proceeding dated 13 July 2022 is refused.
2.On or before 4:00pm on 29 July 2022 the applicant must file and serve upon all other parties –
(a)an amended application (if any) seeking the orders to be sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which she intends to rely; and
(d)a financial statement that complies with chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
3.On or before 4:00pm on 12 August 2022 the first, second and third respondents must file and serve upon all other parties –
(a)an amended response (if any) setting out the orders being sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which he intends to rely; and
(d)a financial statement that complies with chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
4.On or before 4:00pm on 12 August 2022 the second and third respondents must file and serve on all other parties –
(a)an amended response setting out with precision what orders are being sought; and
(b)the affidavits of evidence in chief of all witnesses upon which they intend to rely.
5.On or before 4:00pm on 12 August 2022 the applicant and the first respondent must file and serve any affidavit in reply to that of the affidavits of the second and third respondents.
6.On or before 4:00pm on 17 August 2022 the applicant must file and serve any affidavit in reply to the affidavit of the first respondent.
7.Any updated property valuations must be at the wife’s cost.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leventis & Leventis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
Today, an urgent return of an application brought on behalf of the wife was heard in reliance upon orders sought in an application in a case dated 13 July 2022. In that application, three particular issues were agitated. The first related to orders of a parenting nature, pursuant to which the mother sought orders for the children to attend upon a family consultant for family therapy. Best understood, that was a proposal that contemplated the engagement of the family consultant to work with the children between now and the trial which is fixed for 28 August 2022, five weeks away.
No particularly developed consideration had been given to the mechanics of the mother’s proposal. The information before me today revealed that the children and the mother are hostile, to say the least. Information, although untested, was put before me to the effect that the children do not wish to return from school pickup with the mother and other information is to the effect that a document prepared by the children – again, I cannot vouch for the accuracy of the document just yet, but it is replete with observations that are less than kind in the emotions exhibited between the children and their mother.
Mr Vadarlis’s client was opposed to the application for family therapy. Mr Felkel did not make any submissions on point. I am unable to see how the suggestion offered at this very late stage in the lead-up to the trial has scope for meaningful operation, aside from the time that will elapse making appointments and scheduling attendances. Having regard to what appears to be a demonstrated resistance as between the children and the mother, I entertain very little prospect that the order, if made, would be adhered to, still less it would be purposeful and the information derived from the process be probative in the determination of matters that I have to consider at trial. At trial, I will be examining all aspects of the best interests of the children and one of those issues will be the current state of empathy or hostility that exists between the children and their mother. The application in paragraph 2, Part (d) of the application in a proceeding, is refused.
Next was the application to modify trial directions. This case has had a peculiar history, although the explanation for it going off the rails is none too easy to distil. The case was intended for trial last year, but did not commence at trial, even though orders had been made well prior to that date for the provision of the usual trial material. Today, counsel for the mother has proposed, in a truncated form, trial directions that make provision for affidavit material between today’s date and the trial, as all parties wish to preserve the trial date of 28 August.
With some minor tweaking urged by Mr Felkel to change the date in paragraph 6 and the identity of his clients as inclusions for paragraph 4, there was no serious opposition to the trial directions other than those in respect of updated valuation evidence. In those circumstances, I propose to make orders in terms of paragraphs 3, 4 as amended, 5, 6 as amended and 7.
The third issue related to updated valuation evidence. Paragraph 8 of the proposal urged by counsel for the wife had real estate in Suburb F, M Town, and another property in Suburb F being the subject of updated valuations. Mr Vadarlis’s client and Mr Felkel’s clients said they were content to rely on the information as it presently stands, even though that information is dated 2020 or thereabouts. Ms Isaacson’s client sought updated valuations and for those updated valuations to be prepared at all parties’ costs. Mr Vadarlis’s clients and Mr Felkel’s clients resisted the suggestion of them being burdened with the cost of providing updated valuations.
For that matter, Mr Vadarlis’ clients, as with Mr Felke’s clients, do not seek updated valuations and are content to rely on those that might be many years old. It seems to me that the wife is insisting on the provision of updated valuations. She can do that, but it will be at her cost. Those costs may be adjusted after trial.
The subject of a mediation was mooted to be held on 15 August. There was no enthusiasm whatsoever by the wife or by Mr Felkel’s client for that. I embrace Mr Vadarlis’ submissions that despite initial hostility to the suggestion of mediation, more often than not mediations can be successful, thereby sparing the parties the inconvenience and emotional turmoil of litigation in this court. They do not want that, however. Therefore I shall not order it. I indicated to the parties that the allocation of time for the trial of this proceeding, seven days, is unusually long, having regard to the relatively few issues that fall for determination.
This case is not in the Major Complex Financial Proceedings List and even cases in that list are conducted with shorter hearing times than the parties seek in this case. When the case starts, it will run its seven days and no matter where the evidence stands or the case stands in submissions, the case will stop if incomplete and another date will be found, possibly into the following year. Parties should keep in mind economy in the presentation of their case. This application, which should have been short, has taken more time than it needed. But the case must be conducted vastly more economically. In those circumstances, I refuse the application for family therapy. I make orders amending the timetable in accordance with the minute. I make orders that have been pronounced in respect of updated family valuations and decline to make the mediation order sought.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 19 July 2022
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